17 November 2010

Testing the New Relationship in the Post-Campbell Era: The Ktunaxa Nation and Qat’muk

No one in 1952 could have predicted that Richard Nixon, then former member of the House Un-American Activities Committee and Dwight D. Eisenhower’s Vice Presidential running mate, would in 1972 become the first American president to visit China, journeying there in pursuit of a new relationship with the communist country. Likewise, no one in 1998 could have predicted that Gordon Campbell, then leader of the opposition and plaintiff in a lawsuit challenging the constitutionality of the Nisga’a Treaty, would in 2005, as Premier of British Columbia, commit the Province to a New Relationship with First Nations peoples.Such political shifts have a heightened dramatic quality due to the fact that the political leader’s personal transformation is part cause as well as part effect of a larger social one.Given what was at stake personally and politically, we may assume that Campbell, like Nixon before him, thoroughly deliberated his, his party’s, and his government’s transition. We may further assume that his deliberations, like Nixon’s, were prompted by changed and changing social dynamics, took into account certain of these dynamics, led him to alter his goals and priorities (telos), and thereby to alter his position. The changed and changing social dynamics that prompted Campbell to rethink his, his party’s, and his government’s approach to First Nations issues included – and indeed were largely due to – a series of court decisions in which the judiciary exhibited increasing impatience with British Columbia’s resistance to giving effect to Section 35 of the Constitution Act, 1982 and its promised recognition and affirmation of aboriginal and treaty rights.By 1998, when he and his Liberal colleagues Geoffrey Plant and Michael de Jong initiated proceedings in the BC Supreme Court challenging the Nisga’a Treaty, Campbell had become de facto leader of the resistance. Mr. Justice Paul Williamson’s masterfully written reasons for dismissing Campbell’s suit, released on 24 July 2000, served as the first and, as it happened, final setback to their legal offensive. From then on, the resistance’s legal efforts turned mainly defensive.Although Campbell should have begun to see the writing on the wall sooner, by late 2004 it had become patent that his, his party’s and – after the 2001 election - his government’s resistance to giving effect to Section 35 was futile. On 18 November 2004, the Supreme Court of Canada released its decision in Haida Nation. There the nation’s highest court unanimously confirmed – what the BC Court of Appeal had held two years earlier - that the Province has a legal duty to consult First Nations in regard to their aboriginal title and rights claims in advance of deciding to engage in or permit an activity that may adversely affect those rights. Contrary to what British Columbia had tenaciously maintained in the preceding years of litigation, the Court held that the duty to consult arises prior to the final resolution of those title and rights claims through litigation or negotiation. Basically, the Court told the Province that it must begin to give effect to Section 35’s promise now, rather than at some indefinite point in the future when aboriginal title and rights claims are finally resolved. Roughly 5 months later, in April 2005, Premier Campbell, along with the leaders of the First Nations Summit, the Union of BC Indian Chiefs, and the BC Assembly of First Nations, agreed to a New Relationship as articulated in the homonymously named document.

On 3 November 2010, Gordon Campbell announced his resignation. Although he plans to stay on as Premier until his party elects a new leader, the Province is already moving into a post-Campbell era. As we move into a post-Campbell era, a question arises as to the fate of the New Relationship. Will Campbell’s efforts to build a New Relationship with First Nations, like Nixon’s efforts to build a new relationship with China, bear fruit beyond his tenure as Premier and on into the future, whoever and whatever party governs this Province?

Whether Campbell’s efforts will do so depends on whether the New Relationship has taken root in the Province’s government and in particular in its bureaucracy. The question, then, is: Are its roots deep enough to weather transition to and regenerate under a new leader and even a new government?

A test of the New Relationship, of its roots, has already arisen in these early days of the transition to the post-Campbell era. On Monday, 15 November 2010, a Ktunaxa Nation delegation delivered the Qat’muk Declaration to the BC Legislature in Victoria. Although not limited thereto, the Declaration serves to highlight the problem giving rise to the aforementioned test. Stated most simply, Qat’muk (GOT-MOOK) is a place highly sacred to the Ktunaxa, the Province will soon decide whether to give its approval to a year-round ski resort (Jumbo Glacier Resort) within the heart of Qat’muk, but Qat’muk’s sacred character and the proposed development are irreconcilable. Added to this are solid scientific grounds for concluding that the health and future of the region’s grizzly bears are also at stake.

What makes this a test of the New Relationship are facts such as the following: (1) the Ktunaxa Nation has been engaged in treaty negotiations with British Columbia and Canada since the early 1990s; (2) the parties are currently at stage four of the six-stage treaty-making process, negotiation of an Agreement in Principle which will form the basis of the Final Agreement; and (3) the Ktunaxa Nation, as represented by the Ktunaxa Nation Council, and British Columbia, as represented by more than a dozen Ministers, recently (22 October 2010) signed a Strategic Engagement Agreement. Such facts serve to indicate the significant progress that the Ktunaxa Nation and British Columbia have made in building a new and better relationship and thus advancing the reconciliation called for by Section 35.

In the circumstances, a failure to take the Ktunaxa seriously and thus to respect Qat’muk and what it means to the Ktunaxa people, their history, their culture, their vision of themselves and their future would (possibly seriously) undermine the New Relationship, especially as it has come to be exemplified in Ktunaxa-BC relations, and its vitality or at least its utility in the post-Campbell era.

It has been famously said, “Only Nixon could go to China.” Part of what this saying tries to encapsulate is that because President Nixon had the respect and/or trust of many Americans otherwise opposed to establishing closer relations with China, he was the American leader best placed to make the trip. As Premier Campbell too had the respect and/or trust of many British Columbians who believed or at least felt that aboriginal difference and its constitutional protection posed a threat to their way of life, he was the Provincial leader best placed to commit BC to the New Relationship. In this sense, then, it is fair to say, “Only Campbell could agree to the New Relationship.”

However, whatever one may think of either man as a person or as a politician, the word “wise” more aptly applies to Nixon’s change of heart and actions regarding China than to Campbell’s change of heart and actions regarding First Nations. In Nixon’s case, the immediate as well as distant future of US-China relations was largely indeterminate. In Nixon’s case, his decisions and his actions could partly determine what the immediate as well as distant future would be. In a very real sense, it was his choice. In Campbell’s case, the long series of court cases emanating from British Columbia and culminating in the Supreme Court of Canada’s decision in Haida Nation had set the general course of BC-First Nations relations for the immediate and distant future. The course was set whether Campbell committed the Province to the New Relationship or not.

This is not to say that his act was empty. It was a public commitment to do what the courts had told it to do, to pursue the course they had set, to begin giving effect to Section 35. Campbell did the right thing. But did he demonstrate wisdom in doing so? Had he acted earlier, say, in 2001 when he became Premier, or in one of the immediately succeeding years, we might account him wise in his choice to pursue a new relationship with First Nations. However, he waited. That he waited suggests that his change of heart not only came late but also was forced upon him by circumstance.

In politics as in other practical affairs, the wise need not wait for circumstance to determine their choices and actions. Nor is their wisdom merely a matter of foresight or prediction. What circumstance they later find is – at least in part - of their own choosing and doing.

Perhaps it is true, “Only Campbell could agree to the New Relationship.” But perhaps it is further true, “Campbell could only agree to the New Relationship when forced upon him.”

Links

First Nations Sacred Sites in Canada's Courts

UBC Press, 2005

"I know of no other book that even attempts to do what Michael Ross's very careful and intelligent legal analysis accomplishes here. Ross's arguments are logically presented and clear, and he makes an important contribution to the literature."

– Peter Russell, Professor Emeritus in Political Science, University of Toronto

*First Nations Sacred Sites in Canada's Courts was shortlisted for the Third Annual George Ryga Award for Social Awareness in Literature (2005).

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About the Book

The sacred sites of indigenous peoples are under increasing threat worldwide as a result of state appropriation of control over ancestral territories, coupled with insatiable demands on lands, waters, and natural resources. Yet because they spiritually anchor indigenous peoples’ relationship with the land, they are crucial to these peoples’ existence, survival, and well-being. Thus, threats to sacred sites are effectively threats to indigenous peoples themselves.

In recent decades, First Nations peoples of Canada, like other indigenous peoples, have faced hard choices. Sometimes, they have chosen to grieve in private over the desecration and even destruction of their sacred sites. At other times, they have mounted public protests, ranging from public information campaigns to on-the-ground resistance. Of late, they have also taken their fight to the courts.

First Nations Sacred Sites in Canada’s Courts is the first work to examine how the courts have responded. Informed by elements of a general theory of sacred sites and supported by a thorough analysis of nearly a dozen cases, the book demonstrates not merely that the courts have failed to treat First Nations sacred sites fairly but also why they have failed to do so. The book does not end on a wholly critical note, however, but suggests practical ways in which courts can improve their handling of the issues. Finally, it shows that Canada too has something profound at stake in the struggle of First Nations peoples for their sacred sites.